An Executive Without Much Privilege

By John Yoo, The New York Times

Presidential power has emerged as a potential topic of controversy in the nomination of Solicitor General Elena Kagan to the Supreme Court. Her supporters from both parties argue that she is a defender of executive power, citing her work as the Obama administration’s advocate in the federal courts. This very claim has made critics nervous about her commitment to civil liberties and her views on using the criminal justice system in the war with Al Qaeda.

True, Ms. Kagan has defended some of the Bush administration’s counterterrorism policies on wiretapping and the detention of terrorists without criminal trial (policies on which I worked as a deputy assistant attorney general under President George W. Bush). But these positions provide little hint about what a Justice Kagan would think about executive authority sitting on the bench in time of war.

When defending its national security policies in court, this administration prefers to rely on Congress’s Sept. 18, 2001, authorization to use military force against those responsible for the 9/11 attacks rather than the president’s inherent powers as commander in chief and chief executive. President Obama may agree with George W. Bush on the usefulness of military commissions to try some terrorists, but he has different ideas about what gives a president the power to create them.

Though Ms. Kagan’s thin record makes it difficult to draw many conclusions on her personal views, her academic work still provides hints into her thinking on this issue. In 2001, she published a 140-page article in The Harvard Law Review, “Presidential Administration,” written when she held no brief for the administration. Some have suggested that because her article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.

This is a mistake that could only be based on reading just the first page of her article. Choosing not to study a treatise on presidential administrative policies containing 527 footnotes is an understandable act of self-preservation. Nonetheless, those who persevere will find that her article clearly and directly rejected the theories supporting the executive branch’s broad constitutional powers. Rather, it is in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch’s powers are quite limited.

Here is what created the misimpression: In the paper, Ms. Kagan defended President Clinton’s insistence that he alone commanded his cabinet officers and agency heads, even when they exercised authorities specifically delegated to them by Congress. “Presidential control of administration,” she wrote, “expanded dramatically during the Clinton years, making the regulatory activity of the executive branch agencies more and more an extension of the president’s own policy and political agenda.”

Thus even if Congress, for example, gave the Environmental Protection Agency the job of setting clean air standards, President Clinton assumed the authority — without any direct permission in law — to set the standards on his own.

And while Ms. Kagan criticized the Ronald Reagan and George H. W. Bush administrations for using their presidential powers to deregulate the economy, she praised Bill Clinton for using those same powers to advance “a distinctly activist and pro-regulatory governing agenda.” To her, Clintonian unilateralism served up just the antidote to bureaucratic “vices (even pathologies), foremost among which are inertia or torpor.” Lighting a fire under the agencies allowed “active if incremental government” through “the development of regulatory solutions to national problems.”

But for Ms. Kagan, finding this authority in the Constitution was a bridge too far, a view that put her firmly in the camp of those who see the president’s powers as circumscribed.

She assiduously rejected any claim that presidents may manage the many functions of the vast administrative state because of their constitutional position as chief executive, a view she attributed to “unitarians.” (These are not your mother’s non-Trinitarian Christians.) Instead, she concluded, the framers did not see the Constitution’s vesting of the nation’s “executive power” solely in the president as a grant of any substantive power.

She based her rejection of the unitary executive view on Supreme Court precedent. She invoked Youngstown Sheet and Tube v. Sawyer of 1952, in which the Supreme Court blocked President Harry Truman’s seizure of the nation’s steel mills during the Korean War, and supported Congress’s power to effectively render whole agencies independent of presidential control.

Incidentally, Justice Robert H. Jackson, who as attorney general in the early 1940s had laid claim to broad executive powers for President Franklin Roosevelt and had even written in support of his seizure of an aircraft factory, turned 180 degrees in Youngstown, insisting that Truman had no such right. He wrote a concurring opinion stating that, as a judge, he could not accept “self-serving press statements of the attorneys for one of the parties,” even when “the advocate was himself.” Should we expect anything more consistent of a Justice Kagan?

In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. “I acknowledge that Congress generally may grant discretion to agency officials alone,” Ms. Kagan wrote, and “the president must respect the limits of this delegation.”

Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton’s centralization of authority in the White House because it fostered “accountability” and “effectiveness”). But she argued that the Constitution gives the president no power to prevent Congress from doing so.

This is simply wrong. Article II of the Constitution vests in the president alone “the executive power” of the United States. As Justice Antonin Scalia wrote in his dissent from the court’s 1988 decision upholding the constitutionality of the Office of the Independent Counsel, “this does not mean some of the executive power, but all of the executive power.” (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)

From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities, even though the Constitution mentions only the power to appoint, not to remove. If Elena Kagan will not even permit presidents this small constitutional right, who can doubt that she will reject executive powers of greater consequence?

Alexander Hamilton first made clear that the president’s right to fire his officers and his substantive powers over foreign affairs and national security all flow from the same constitutional source. “The general doctrine then of our Constitution is, that the executive power of the nation is vested in the president,” Hamilton wrote in defending George Washington’s 1793 Neutrality Proclamation, “subject only to the exceptions and qualifications” in the text itself.

But if presidents cannot constitutionally command their secretaries of defense, as Ms. Kagan would allow, they certainly do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders. The framers designed the presidency to play a modest role at home, using the veto to check Congress’s excesses. In foreign affairs, however, the chief executive should enjoy flexible powers to grapple with challenges abroad for which Congress is ill suited. Ms. Kagan seems to harbor a reverse image of the original presidency — vigorous domestically, constrained internationally.

The Senate hearings next month on her nomination will be our last chance to find out what Elena Kagan really believes. With the nation fighting wars in Iraq and Afghanistan and locked in a struggle with Al Qaeda, her views on executive power may be the most important ones to learn more about.

John Yoo, a law professor at the University of California at Berkeley and a scholar at the American Enterprise Institute, is the author of “Crisis and Command: A History of Executive Power From George Washington to George W. Bush.”